LegalMatch: Employment Law

Little Rock Police Getting Paid to Undress?

Little Rock police have enlisted legal assistance in a recent battle to get overtime pay for getting undressed.

The Arkansas-based police argue that the process of donning and doffing their uniforms—which includes a weighty, bullet-resistant vest—takes upwards of 60 minutes each day, and that the extra hour should be compensated with overtime pay. The suit currently in effect also seeks back pay for the past three years, claiming that the State failed to comply with the Fair Labor Standards Act (FLSA).

The FLSA requires that all employers provide overtime pay to hourly employees that work over 40 hours per week. Any time exceeding those initial 40 hours is then overtime, which is paid at 1.5 times the employee’s normal rate of pay. For example, a person working 43 hours per week at $20/hour would make $800 for the first 40 hours of work and $90 for the three hours of overtime (which are paid at a the overtime rate of $30/hour).

Firemen, policemen, and other government employees are, however, subject to special rules, and are not always fully protected by the FLSA. And this exception to wages and overtime pay will probably be the point around which the Little Rock case pivots.

 

Are there any employees that are not protected by the Fair Labor Standards Act?

Yes. There are several categories of workers that are not legally required to receive overtime pay or FLSA benefits. These include employees who:

• Work on commission, like salespeople
• Earn at least $27.60/hour as computer professionals
• Work for a car dealership as salesmen, mechanics, or partsmen
• Work on a farm
• Are salaried, like white collar professionals
• Work as drivers, driver’s helpers, loaders, or mechanics

However, if you are an hourly employee and believe that you have been denied your right to overtime pay, you should contact a wage lawyer and discuss your options for winning back pay for the duration of your employment.

 

By Kate Beall

Wrongfully terminated.

The fear of being fired, canned, outsourced, or laid off is one that many workers tend to have in common. And termination is a fact of corporate life. People are fired every day for incompetence, for making mistakes, for slacking off or running late, and most of those firings are legally just. But there are also terminations that are not just—those are the ones we refer to as “wrongful terminations.”

Wrongful terminations are divided into several categories:

• Discrimination,
• Retaliation,
• Contractual Employees,
• Illegal Acts,
• Family or Medical Leave, and
• Failure to Follow Established Termination Procedures

Complex?

Certainly. Which is why you can follow the “wrongful terminations” link above for more detailed information. But let’s focus first on the issues brought up by the Social Security Disability Advocates Blog. Discrimination, our first category in the wrongful termination department, not only protects citizens from termination based on race or sex, but also extends a protective shield against age-based lay-offs. So, if you feel like you’ve been “let go” specifically because of your age, filing a wrongful termination claim might be a wise move.

In fact, one of the things that SS Advocates mentions is how easy it is to find a lawyer online. If you’re reading this, you’re probably already aware that LegalMatch provides free online legal matching. But SS Advocates also suggests searching for blogs or websites created by people who have dealt with legal issues similar to your own, and asking them who they went to when they needed help. 

Not a bad idea!  :)

by Kate Beall

Non-Compete Agreements in Employment Contracts.

You were just offered a sparkling, six-figure salary from a top-100 business. The position is a posh one—benefits, 401ks, and stock options have been thrown at you from all directions, and it’s just a matter of choosing the best gems in the jewel box. But there’s a catch. Your saving grace, the business with the golden employment package, is in direct competition with your current employer.

Do you remember signing that non-compete covenant?

If you look at most employment contracts, you’re very likely to run into a non-compete agreement or non-compete clause. These is a part of your contract that forbids you from working for your employer’s direct competitors for a specific period of time—usually several years. Take a look at your own contract and see if you are restricted from doing any of the following:

• Working for your employer’s direct competitors
• Working in a specific, competitive industry or business
• Working in a particular geographic area

If any of those “no’s” come up in your contract, you’ve probably signed a convenant not to compete.

Luckily, most non-competes are nothing to worry about. The law requires all of those kinds of agreements to be reasonable, which means that an employer can’t monopolize your life by making too many restrictions. In fact, if the non-compete you signed is unreasonable, a court won’t enforce it at all.

 

What makes a non-compete unreasonable?

• Time: A restrictive period that lasts too long.
• Geography: A geographic restriction that is too large.
• Industry: Forbidding work for too broad a range of businesses.
• Interest: When there’s no legitimate interest in enforcing the non-compete.

So maybe you wouldn’t be able to take that glamorous job from your deep-pocketed competitor, but you aren’t going to be blacklisted from your industry either. But be wary, because there is an exception to your protection from unreasonable non-competes! If you accept and receive compensation in exchange for your agreement with a particular non-compete, the court is very likely to rule in favor of your employer.

Think a moment before you pick up your pen, and have an employment lawyer go over any employment contracts you plan to sign. Make your job work for you.

by Kate Beall

$5.85M Awarded to Ex-Fresno State Coach Under Title IX Law.

Last week Lindy Vivas, a former volleyball coach for Fresno State, won $5.85 million in damages in a gender discrimination suit against the school.

Vivas was fired in 2004 after expressing the opinion that female athletes at Fresno State should have equal treatment and access to school facilities. The University’s claim that the former coach failed to meet performance goals did not acknowledge that, merely two years prior, she had led her team to the best season in its history.

According to the San Francisco Examiner, this may be the largest award “ever granted to a coach suing for retaliation under Title IX.”

 

What does Title IX mean for women?

Title IX is a federal law that was first put in place to abolish gender and sex discrimination in public schools, and is primarily used as a shield against programs that prioritize male success over that of their female counterparts. The establishment of this law followed a period where men were given preferred or exclusive access to academic and athletic resources.

As of today, we have just passed the 35^th Anniversary of Title IX’s implementation, and the benefits are in the numbers. In an article titled “Title IX turns 35, yet hasn’t reached it’s prime,” The Seattle Times reports that since Title IX’s inception:

“[…] Women's participation in college sports has jumped from 30,000 to 170,000, and, in high-school sports, from 300,000 to 3 million. Female athletes earn higher grade-point averages and report higher self-esteem than their nonathletic classmates. […] Increased physical activity also translates into a reduced risk of several life-threatening diseases, including breast cancer, obesity and cardiovascular disease.”

But even with numerous benefits at hand, women’s athletic programs are still struggling to recruit and support their female students. The article at hand notes that while almost 25% of Americans are aware of a recent situation in which female athletes were treated unfairly, 60% of that group wouldn’t know how to take legal action to amend it.

 

Take Action.

If you are aware of a violation of Title IX law, you can take action immediately by consulting with a gender and sex discrimination lawyer. Remember that, like Lindy Vivas, you are protected from wrongful termination by your employer—retaliatory termination is illegal under Civil Rights law.

Title VII of the Civil Rights Act further protects employees from discrimination on the basis of race, sex (including pregnancy and childbirth), religion, and national origin.

by Kate Beall

Taking Time off for Your (Friend's) Health.

Sick leave is a familiar institution in US work spaces. Paid or unpaid, sick days allow affected employees to rest and recover—without worrying about whether their job will be waiting for them when they return.

But what about workers who need time off to care for someone else?

This was the question at the core of a recent Tennessee dispute where Pam Melson, a courageous Tennessee Apparel factory worker, was denied time off to make a kidney donation. Her boss, who compared the donation leave to “someone getting let off to get breast implants,” defended himself with the Family and Medical Leave Act (FMLA) of 1993.

The FMLA does make time-off provisions for pregnant women, care of newborn or adopted children, personal health problems, and caretaking for immediate family members, granting a full 12 weeks of leave for qualified employees. This act does not technically extend to donor efforts.

Because of the FMLA’s limits, 17 states have now passed legislation to encourage organ donation. For example, Family and Medical Leave in Connecticut grants organ and marrow donors a generous 24 weeks of leave every two years.

However, Tennessee is not one of those states, and Melson’s employer was not legally obligated to grant her time off for her donation. Fearing the loss of her factory job and the welfare of her two children, Melson believed she would have to postpone the donation.

Only yesterday did the Tennesseean report a change of heart from Melson’s employer.

After a tide of criticism poured in regarding the factory’s initial stance, the company issued a formal statement permitting medical leave for organ donation. This amendment “will treat requests for voluntary organ donation as a request covered by FMLA leave if they meet all the other requirements for FMLA coverage.”

Melson and Donnie Hammack, who will receive her kidney, were elated to learn that they could proceed with the transplant.

 

Are you qualified for medical or family leave under the FMLA?

If your employer has 50 or more employees, and you have worked at least 1,250 hours over the past 12 months, you may be eligible for 12 weeks of unpaid medical or family leave under the FMLA. Additionally, you are guaranteed your job back upon returning, and full access to your health and medical benefits during your absence.

Check your state laws regarding Family and Medical Leave.

You might be entitled to paid family leave, or you may need medical certification to justify your absence. Our Law Library provides easy-to-understand information about Family and Medical Leave Lawyers, and further information for workers living in Oregon, California, Minnesota, Wisconsin, New Jersey, and Connecticut.

by Kate Beall

 

Pregnancy Laws.

A recent posting in the Labor Law Talk Blog summarizing various US state Pregnancy Laws highlights the lack of specific laws providing benefits new parents or outlining the rights of pregnant employees in many states, such as Florida and Wyoming. Rising social awareness of Pregnancy Discrimination and women's rights are leading to an increase in Pregnancy Discrimination litigation, a body of law that closely parallels actions taken in Gender and Sex Discrimination matters. 

The federal Family and Medical Leave Act of 1993 requires that some employers offer unpaid leave for serious medical conditions for employees or members of their immediate family.  Eligible employees may receive up to 12 weeks of unpaid leave during any 12-month period from qualifying employer.

Two primary federal laws guide most state Pregnancy Laws. The Pregnancy Discrimination Act (PDA) protects parents-to-be; this came into federal law as an amendment to the Civil Rights Act of 1964.  Passed by Congress in 1978, the PDA makes it illegal for employers to refuse to hire, fire, or deny a promotion to women who are pregnant.  The law also provides that employers must treat a pregnant woman the in the same manner as it would treat any other employee that becomes ill or temporarily disabled. More legal information about these laws and other employment and hiring issues can be found at LegalMatch.com in their LegalCenter Law Library 

The Age of the At Will Employee.

If you aren’t a contract employee you most likely are an at will employee. These days it seems like we are all at will employees. You may be asking: what is an at will employee? At will employment means that an employer can fire an employee for any reason the employer sees fit as long as it is not for an improper reason. This cuts both ways. Employees are also allowed to terminate their employment at any time for no stated reason.

What about 2 weeks notice? An employee is generally not required to give advance notice before quitting unless such notice is required. Read your employee handbook or company policy prior to giving no notice. Some policies or handbooks require notice and if no notice is given there may be consequences such as forfeiting accrued vacation time. This varies from state to state so make sure you are familiar with your state laws.

Even if you are an “at will” employee, if you are fired for any of the reasons below you may have a claim for Wrongful Termination:

 

• Discrimination – This includes race, color, gender, creed, national origin, religion and in some states sexual orientation and gender identification.
• Retaliation – This includes whistle-blowing or filing any other claim against your employer.
• Contractual Employee – If you have a contract to work for a specified time frame then you cannot be terminated in this manner.
• Illegal Acts – Refusing to commit illegal acts for your employer are not grounds for termination
• Family and Medical Leave Act – You cannot be fired for taking leave under this act.
• Written Termination Procedures – If your employee handbook or another document outlines termination procedures than those must be followed.

So how do you prove that you were fired because of one of these reasons? Good question. Most, if not all states do not require the employer to state a reason for termination. Proving discrimination or retaliation is often quite difficult without a direct admission or statement to a third party. In cases such as these it is usually a totality of the circumstances that makes the case. For example, if you feel you have been terminated because of your age you may be able to show that the company has an unwritten policy that anyone over the age of 45 is terminated. Or maybe you have emails hinting that your age might be a factor for your “poor performance.”

Many people will tell you that you just know when you have been fired for a specific illegal reason. We have all seen the movie Philadelphia (and if you have not seen it you should). That attorney was obviously fired because he had AIDS but look at the lengths he had to go to trying to prove this obvious fact. If you feel you have been wrongfully terminated contact an attorney.

By Lisa Zanassi

Sexual Harassment in the Workplace.

Many employees want to know… What is sexual harassment?  There are two types of sexual harassment in the workplace.  The first type is called Quid-Pro-Quo harassment.  Quid Pro Quo harassment is when an employer makes sexual conduct a prerequisite for obtaining something in the workplace i.e. a promotion.  The second type of sexual harassment, Hostile Environment, involves situations in which an employer or coworker makes the victim feel uncomfortable in the workplace because of his or her sex.

Sexual harassment in the workplace has remained steady over the years.  Recently there has been a slight decrease in sexual harassment complaints with the Equal Employment Opportunity Commission.  Employers credit their efforts for the decrease in filings. 

The United States Supreme Court has created a two part test to be used by employers in defense of a sexual harassment charge.  The first part of the test requires employers to show that they took reasonable care to prevent and correct any sexual harassment behavior within their workplace.  The second part requires the employer to show that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. 

To satisfy the two part test, employers have implemented policies to avoid these situations.  Many employers have a sexual harassment/discrimination policy.  This policy is typically distributed through an interoffice memo or explained in an employee handbook.  You will most likely have to sign this policy so that your employer has proof that you received the policy.  Second, employers offer employees different avenues in which to make complaints about harassment in the workplace.  Some avenues include calling the human resource department or talking to a gender specific supervisor who you feel comfortable speaking with.  Some employers conduct sexual harassment training that all employees are required to attend.  This type of training explains what sexual harassment is and often shows examples that many would not think would be construed as sexual harassment.  Meetings are conducted annually to discuss sexual harassment with supervisors and upper management.  Yearly surveys also assist employers in knowing what is truly going on at their business.  All of these policies are imperative in creating a safe work environment. 

If you are being harassed by a coworker, upper management or a supervisor you should seek advise from an attorney.  Your employer may be directly or strictly liable for the type of harassment that you are suffering at your place of employment.

If you are an employer being accused of sexual harassment you will want to act quickly.  You are not automatically liable and do have defenses to such a charge.  You will also want to contact an attorney for advice and representation. 

By Lisa Zanassi

Welcome to the LegalMatch Employment Law Blog!

Are you seeking legal advice or representation on an employment law-related issue? Perhaps you're an attorney who specializes in employment  law? The LegalMatch Employment Law Blog is the online source for relevant and informative articles and information.LegalMatch offers an authoritative and trustworthy voice on the issues of the day as they concern the legal industry and you as a consumer. Please note, the articles and information in this blog are for informative purposes only. Always consult the professional advice of a lawyer for your particular legal issue. Enjoy!